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United States v. Covello

decided: March 24, 1969.


Waterman and Feinberg, Circuit Judges, and Bartels, District Judge.*fn*

Author: Waterman

WATERMAN, Circuit Judge:

Joseph Covello having been found guilty after a jury trial in the United States District Court for the Southern District of New York appeals from the judgment of conviction entered upon the verdict. He was indicted on nineteen counts,*fn1 was found guilty on counts 1 through 6, on count 17 and on count 19, and was acquitted by the jurors on each of the remaining eleven counts. We affirm the judgment of conviction.

Count 1 charged appellant Covello and codefendants Thomas Molinaro, Armando Restaino and Anthony Nappi with a conspiracy in violation of 18 U.S.C. § 371*fn2 to violate federal interstate gambling statutes, 18 U.S.C. § 1084*fn3 and 18 U.S.C. § 1952.*fn4

Counts 2 through 6 charged appellant Covello with using interstate telephone facilities between New York and New Jersey in violation of 18 U.S.C. § 1084. Counts 7 through 11 charged Covello and Molinaro, and counts 12 through 16 charged Covello and Restaino, with similar violations of § 1084.

Counts 17 through 19 charged appellant Covello and Molinaro with violation of 18 U.S.C. § 1952 for allegedly traveling in interstate commerce between New Jersey and New York to conduct a business enterprise involving gambling in violation of a New Jersey statute prohibiting bookmaking.

Covello was sentenced to concurrent sentences of three years imprisonment on count 1, two years imprisonment on each of counts 2 through 6, and three years imprisonment on each of counts 17 and 19.*fn5

The Government's case in support of the allegations in counts 2 through 16 was based on the testimony of four witnesses and the New York Telephone Company records of toll calls from a New York City number, TR 9-3755, to three New Jersey numbers, OR 6-1730, HU 4-4190, and HU 4-9011. The New York number was listed to Howard Garfinkel at 944 Park Avenue, New York City, where Howard and his brother Merrill Garfinkel lived. The New Jersey numbers were listed to one John Marsh and to defendant Molinaro and defendant Restaino respectively. The toll call records the Government submitted in evidence also showed calls to Covello's home number, PL 9-2829, and to the number of the Chez Charles Night Club, HU 3-9405, where Covello was employed as the manager.

Merrill Garfinkel, the key government witness, testified that during the baseball season of 1961 and throughout the football, basketball, and baseball seasons of 1961 up to June 19, 1963, he furnished Covello for an agreed biweekly compensation of $200 a "betting line" by telephoning the "line" to a number in New Jersey. In addition, Merrill testified he would wager with Covello for himself and others over the telephone by using the same number. The calls, he said, were usually placed from a New York City phone booth but were made occasionally from his home at 944 Park Avenue. Merrill did not recall the number which he called in New Jersey during the 1961 baseball season, but he did remember the numbers OR 6-1730, HU 4-4190, and HU 4-9011 as the ones by which he reached Covello during the 1962-1963 sporting seasons. He had no reccollection of the specific contents of any of these calls.

Howard Garfinkel corroborated the testimony of his brother. He testified that he was sometimes present when Merrill called Covello and that he furnished Covello the "betting line" during periods when his brother was on vacation.

A third witness, Vincent Conour, testified that, upon being furnished Covello's number at OR 6-1730 by Merrill Garfinkel, he thereafter telephoned wagers to that number. He also described a visit he made to Covello at 312 Park Avenue, East Orange, New Jersey, the address where OR 6-1730 was located.

A fourth witness, Herbert Seid, testified that he too was introduced to Covello over the telephone by Merrill Garfinkel and that he thereafter placed wagers with Covello by telephone in 1962 and 1963. He could not remember, however, what numbers in New Jersey he had telephoned.

Counts 2 through 6 on which Covello was convicted involve only the OR 6-1730 number. The other two New Jersey numbers relate to counts 7 through 16 on which Covello was acquitted.

Count 17 was based on the testimony of witness Conour concerning an alleged meeting with Covello and Molinaro at Conour's apartment in New York on May 14, 1962 to settle a balance of $5,123 owed to Conour for his winnings.

Count 19 was based on an alleged settlement meeting in New York on June 13, 1963, at which Covello, Molinaro, Merrill and Howard Garfinkel and Herbert Seid were allegedly present.

The sufficiency of the Government's evidence at trial is not in issue. Appellant's appeal, however, alleges a number of evidentiary errors.


§ 605 of the Federal Communications Act

At the trial the Garfinkels were unable to recall the specific times and dates of their alleged phone calls to the defendant. Instead, the Government submitted in evidence the New York Telephone Company's records of toll calls, or "toll slips," made from the Garfinkels' home number to the aforementioned New Jersey numbers. The slips showed the number from which the call was placed, the number and city to which the call was placed, the fact that the call was completed, the date and time of the call and the length of the conversation. Appellant's objection to the admissibility of the "toll slips" as evidence obtained in violation of § 605 of the ...

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